A revised version of the Rules of Procedure for the Boards of Appeal

A revised version of the Rules of Procedure for the Boards of Appeal (RPBA 2000) at the European Patent Office (EPO) came into force on 1 January 2020. Preparatory work on the revised Rules started in 2017 and continued until early 2019, and the revised Rules of Procedure were unanimously approved by the Administrative Council of the EPO in June 2019.

One principal aim of these new procedural rules was to increase the efficiency of the treatment of cases by the Boards of Appeal. The reality was that a large backlog of appeal cases had been steadily building up over several years. In the context of over 3,000 appeals cases filed in the 12-month period ending on 31 December 2019, on this date the number of pending appeals stood at over 9,000.

It is apparent that procedural gains can only realistically be achieved by restraining behaviour of the users of the appeal system. While procedural efficiency clearly needed to be addressed, it was also vital that this be at no cost to loss of respect for the judicial authority of the Boards of Appeal, or to infringement of the fundamental rights of the appellants. The RPBA 2000 seek to achieve the necessary balance between procedural efficiency and respect for legal fundaments.

To a large extent the RPBA 2000 encourage a focus of attention onto the salient issues in a particular appeal case. Cases which bounced back and forth between the Boards of Appeal and the departments of first instance of the EPO (principally Examining and Opposition Divisions), and did so for years, were long the subject of legend. Although this may make for amusing conversation, there is probably otherwise little value to concerned (including third) parties in this practice, a practice which is positively discouraged by the revised Rules. Under RPBA 2000, for a Board to remit a case special reasons, such as fundamental deficiencies which should have been apparent at first instance, must present themselves.

A party who attempts to alter its case during appeal can expect to be blocked by the revised Rules. Thus, the focus is kept on dealing with the decision under appeal, rather than tolerating an exploration of new avenues by a party who is simply seeking to achieve a particular outcome, or perhaps even delay proceedings. Submissions from parties are generally expected to be presented in their entirety at the outset of the appeal process, either in the statement of the grounds of appeal, or in the reply. The discretion not to admit further submissions lies entirely with the Board. Furthermore, unless particular circumstances dictate otherwise, a party can expect that requests, facts, objections or evidence not admitted in the proceedings leading to the decision under appeal will not be admitted into the appeal proceedings.

The RPBA 2000 increase the leeway of the Boards to consolidate and accelerate proceedings. Whereas previously the consent of parties was required before a Board could treat a series of connected cases together, a Board may now proceed in this manner of its own motion. A request from a court of a contracting state or a justified request from a party to the appeal to accelerate an appeal case will be considered, and a Board may choose to accelerate an appeal of its own motion.

Although communications from the Board, preparations for oral proceedings and decisions may only be drafted once the composition of the Board is complete, certain tasks, such as a preliminary study of the case and an assessment of whether to prioritise or bundle the case, may be carried out by the Rapporteur prior to the determination of the complete composition of the Board. This increases the flexibility of the Boards in tackling cases. However, the revised Rules also put constraints on the Boards. A list of cases in which a Board is likely to hold oral proceedings in a working year is published at the beginning of that year and the RPBA 2000 set out timescales to which the Boards should endeavour to work.

A final provision worth mentioning is that the RPBS 2000 enable the issuance of a decision (or parts thereof) in abridged form. This may only be done with the explicit consent of the parties. It remains to be seen what use will be made of this provision, given that the Case Law of the Boards can only develop through the publication of fully reasoned decisions.

A party with a case to put to the Boards of Appeal of the EPO should not be deterred by the RPBA 2000. What can be expected is that the case will be dealt with efficiently and on its merits.

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